Excerpt: - - there were criminal proceedings against the plaintiff on account of his failure to obtain a licence after paying the proper licence fee......to him. the corporation demanded from the plaintiff a licence fee equal to 15 per cent, of the gross income from the market which they assessed at a particular figure. the plaintiff protested against that demand and claimed that he was only liable to pay a licence fee calculated on the amount of rs. 225 which he received from his contractors. there were criminal proceedings against the plaintiff on account of his failure to obtain a licence after paying the proper licence fee. the plaintiff thereupon filed the suit out of which the present appeal arises for a declaration that the licence fee payable by him to the corporation for the suit market is only rs. 405, that is to say, calculated on the amount of rs. 225 payable to him monthly by the contractors. the learned additional judge.....

Judgment:

P.V. Rajamannar, C.J.

1. The decision of the only question which arises in this Letters Patent Appeal turns on a construction of Section 304-B of the Madras City Municipal Act (IV of 1919). The appellant is admittedly the owner of a private market at Mylapore. Under Section 304 of the Act,

no person shall without or otherwise than in conformity with an annual licence granted by the Commissioner in this behalf continue to keep open a private market.

2. The appellant admits that in accordance with this section, he has to obtain a licence before he can keep open his private market. The licence so granted under Section 304 may permit the licensee to levy a fee or fees of the nature specified in Sub-section (2) of Section 301 of the Act. The appellant purported to grant a lease of the market to contractors who, under its terms, had to pay him a fixed sum of Rs. 225 a month. The transaction was really an arrangement by which the contractors were allowed to collect the fee or fees which the owner could levy in accordance with the terms of the licence granted to him. The Corporation demanded from the plaintiff a licence fee equal to 15 per cent, of the gross income from the market which they assessed at a particular figure. The plaintiff protested against that demand and claimed that he was only liable to pay a licence fee calculated on the amount of Rs. 225 which he received from his contractors. There were criminal proceedings against the plaintiff on account of his failure to obtain a licence after paying the proper licence fee. The plaintiff thereupon filed the suit out of which the present appeal arises for a declaration that the licence fee payable by him to the Corporation for the suit market is only Rs. 405, that is to say, calculated on the amount of Rs. 225 payable to him monthly by the contractors. The learned Additional Judge of the City Civil Court dismissed the suit. He held that the fee collected from the various stall holders is the 'gross income' of the plaintiff 'from the market', within the meaning of Section 304-B of the Act and the Corporation was not wrong in basing the licence fee on such income. By using the term, ' gross income,' he was of opinion that what was meant was the income which was derived from the market without deducting the expenses of collection, management, etc., and by the alleged lease the plaintiff had only transferred the right of management, etc., to the contractors and the contractors must be deemed to be agents of the plaintiff. The plaintiff appealed to this Court. Horwill, J., dismissed the appeal. But the learned Judge, however, was not inclined to agree with the conclusion of the trial Judge that 'the gross income of the owner' mentioned in Section 304-B is the income derived from the various stall holders in the market. This is what the learned Judge says:

We are not concerned with the legal relationship between the plaintiff and his contractor. Suffice it to say that the plaintiff was not entitled to receive from the contractor anything more than the sum of Rs. 225 agreed upon, however great or however little the gross income from the stalls might have been. So that there was no relation between the amount received by the plaintiff and the gross income from the stalls. The sum received by the plaintiff as a result of his contract cannot therefore be regarded as the gross income minus some sum allowed for the expenses of collection. The argument of the learned Additional City Civil Judge therefore seems fallacious.

3. The City Civil Judge did not hold that the sum received by the plaintiff as a result of the contract was the gross income minus a sum allowed for expenses of collection. On the other hand, he held that it was the income derived from the various stall holders that, must be regarded as the gross income of the plaintiff as owner, though for purposes of convenience of management the contractors were entrusted with the task of running the market and they were permitted to appropriate the surplus, if any, remaining after meeting all expenses and paying a sum of Rs. 225 to the plaintiff. In our opinion, the language of Section 304-B is clear. The licence is granted to the owner. It is the person to whom licence is granted that can levy the fee or fees of the nature specified in Sub-section (2) of Section 301. The licence fee which such person is liable to pay is a fee not exceeding 15 per cent of his gross income from the market. If the fact that it is only the licensee that can levy the fee is sufficiently borne in mind, then it follows that the gross income really is the income derived by the levy of the fees from the stall holders. The fact that under a contract between the plaintiff and the contractors the latter actually collect such fees from the stall holders cannot make any difference in the legal position. The words used are 'gross income' If the words used had been 'net income', it might have been arguable that Rs. 225 must be considered to be the net income of the owner. But having regard to the use of the word ' gross income ' and to the fact that it is the owner who has been granted a licence and he alone can levy the fee, it is clear that the 'gross income' there refers to the total fees collected from the stall holders in the market. In this view, it is unnecessary to deal with another question discussed by Horwill, J., in his judgment which turns on the language employed in the definition of 'owner' in Section 3(17) of the Act, which says, that 'owner' includes

the person for the time being receiving or entitled to receive the rent or profits of the property in connection with which the word is used.

4. We think that the owner in Section 304-B can only refer to the owner of the market to whom a licence has been granted under Section 304. It is also doubtful if a person who has been permitted to collect the fees which are leviable under the licence can be said to be a person entitled to receive the rents and profits of the property.